Freed v. Freed

• Decision Date: 12 April 1990
• Docket Number: No. 890305,890305
• Citation: 454 N.W.2d 516
• Parties: Mary Anna FREED, Plaintiff and Appellee, v. Donald C. FREED, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 516

454 N.W.2d 516

Mary Anna FREED, Plaintiff and Appellee, v. Donald C. FREED, Defendant and Appellant.

Civ. No. 890305.

Supreme Court of North Dakota.

April 12, 1990.

Pamela J. Hermes (argued) and Jerry O. Brantner of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for plaintiff and appellee.

Jonathan T. Garaas of the Garaas Law Firm, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

Donald C. Freed appealed from a judgment and decree of divorce entered in the district court for Cass County. On appeal, Donald contends that the findings of fact of the trial court were clearly erroneous resulting in an improper child custody award and an inequitable distribution of property. We affirm. Mary Anna Freed has sought attorney's fees for the appeal pursuant to NDCC Sec. 14-05-23. We remand for a determination of attorney's fees by the trial court.

Donald C. Freed and Mary Anna Freed were married in West Fargo, North Dakota, on May 25, 1968. The couple resided in Horace, North Dakota. Mary Anna received a degree in elementary education from Moorhead State University and is employed as a teacher by the West Fargo School District. Donald is a self-employed contractor, and is the owner and operator of a trailer court in Horace. Two children were born to Donald and Mary Anna: Scott Allen Freed, born November 3, 1974, and Ericka Leone Freed, born May 27, 1980.

On September 17, 1987, Mary Anna initiated an action for divorce on the basis of irreconcilable differences. A trial in this divorce proceeding was held in July of 1989 in the district court for Cass County. The divorce judgment placed custody of Scott with Donald, and custody of Ericka with Mary Anna. Both Donald and Mary Anna were granted the right to reasonable visitation.

The judgment also divided the property of the parties.

On appeal, Donald contends that the trial court erred in splitting custody of Scott and Ericka, and asserts that he should have been awarded custody of both children. Donald also argues that the trial court made an inequitable division of the couple's property and debts. We consider Donald's arguments separately.

CHILD CUSTODY

The standard to be followed by trial courts in making initial child-custody determinations is "the best interests and welfare of the child." NDCC Sec. 14-09-06.1. See also Worden v. Worden, 434 N.W.2d 341 (N.D.1989); Wright v. Wright, 431 N.W.2d 301 (N.D.1988). The trial court must consider and evaluate "all factors affecting the best interests and welfare of the child" enumerated in NDCC Sec. 14-09-06.2. ¹ See Roen v. Roen, 438 N.W.2d 170 (N.D.1989). Furthermore, the trial court is vested with substantial discretion in matters of custody and in the determination of what is in the best interests of a child. Dizayee v. Dizayee, 414 N.W.2d 606 (N.D.1987); Gorsuch v. Gorsuch, 392 N.W.2d 392 (N.D.1986).

It is well settled that a trial court's determinations on matters of child custody are treated as findings of fact. Dinius v. Dinius, 448 N.W.2d 210 (N.D.1989); Worden v. Worden, supra; Bashus v. Bashus, 393 N.W.2d 748 (N.D.1986). We do not set aside the findings of the trial court on appeal unless they are clearly erroneous. Rule 52(a), NDRCivP; Davis v. Davis, 448 N.W.2d 619 (N.D.1989); Miller v. Miller, 305 N.W.2d 666 (N.D.1981). A trial court's findings of fact are presumptively correct, Branson v. Branson, 411 N.W.2d 395 (N.D.1987), and are clearly erroneous only when the reviewing court, based upon the entire evidence, is left with a definite and firm conviction that a mistake has been made, Dinius v. Dinius, supra; Bashus v. Bashus, supra; Ebertz v. Ebertz, 338 N.W.2d 651 (N.D.1983); Bergstrom v. Bergstrom, 296 N.W.2d 490 (N.D.1980). Our scope of review is properly limited by the "clearly erroneous" rule because the trial court, having had the opportunity to observe the demeanor and credibility of the witnesses, is in a much better position to ascertain the true facts than an appellate court which must rely on a cold record. Dinius v. Dinius, supra; Dizayee v. Dizayee, supra; Bashus v. Bashus, supra.

In the instant case, the trial court ordered a custody investigation and report concerning custodial arrangements for the Freed children. See NDCC Sec. 14-09-06.3. Jared Simonson, a juvenile probation officer with the Cass County juvenile court, was appointed as the custody investigator. Simonson subsequently drafted and filed a copy of his report with the trial court. Simonson's report indicated that Donald was a self-admitted alcoholic who voluntarily completed out-patient counseling at the Crossroads Treatment Center in 1986. However, the report expressed concern that Donald was not attending Alcoholics Anonymous meetings, and that Donald was not currently involved in any other type of counseling or program for his alcoholism. ² Simonson's report also noted that Mary Anna had a "propensity to become angry when frustrated," and that Mary Anna was involved in three incidents of physical confrontation with Scott either during arguments or when Scott had directed abusive language towards her. The report stated that "regardless of the reason[s] underlying it," Mary Anna and Scott's relationship is "estranged." Simonson also evaluated each of the "best interest" factors enumerated At the conclusion of the trial, the district court made a number of oral findings from the bench and later entered written findings regarding child custody. While stating that it considered all of the child-custody factors set forth in Sec. 14-09-06.2, the district court found that Donald was a self-admitted alcoholic; that his drinking had affected the family's structure, income, and stability; and that he was not involved in a continuing-recovery program. The oral and written findings also state that Mary Anna had been involved in prior physical confrontations with Scott and that she reacts to stress in an "inappropriate" manner. However, the trial court in its oral comments stated that it had no reason to believe that there was any prolonged physical abuse by Mary Anna. The district court's findings also indicate that Scott had expressed a preference towards living with Donald, and that he had difficulty in his relationship with Mary Anna. From these findings, the trial court concluded that the interests of the children dictate that Donald receive custody of Scott, while Mary Anna receive custody of Ericka. The court also concluded that both Donald and Mary Anna should be granted reasonable visitation.

in Sec. 14-09-06.2. While noting each of the aforementioned concerns, Simonson generally rated Donald and Mary Anna equally with regard to most of the factors. However, Simonson's evaluation did indicate that Scott expressed a strong preference to live with his father, while Ericka was unable to express any preference. Simonson recommended to the court that Donald be awarded custody of Scott, while Mary Anna should be awarded custody of Ericka. During the trial, Simonson's testimony expanded on the recommendation in the report. Simonson testified about his great concern over Donald's alcoholism and lack of an aftercare recovery program. Simonson stated that if Scott had not expressed such a strong preference to live with his father, he would have recommended that both children be placed with Mary Anna.

On appeal, Donald contends that the trial court erred in its findings and should have awarded him custody of both Scott and Ericka. Donald's first argument is that the trial court's findings improperly ignored the evidence concerning Mary Anna's physical abuse, while overemphasizing his alcoholic status. We disagree. The findings entered by the district court clearly demonstrate that it took into account Mary Anna's "inappropriate" physical confrontations with Scott, but discounted them as situational and not prolonged in nature. Such findings appear to rest upon Simonson's custody report, and Mary Anna's testimony which indicated that the three incidents of confrontation occurred mainly in reaction to arguments with Scott, or in reaction to abusive language from Scott. Furthermore, a parent's inability to control his or her alcoholism is a highly relevant factor that a trial court can properly consider in child-custody determinations. See, e.g., Cross v. Cross, 374 N.W.2d 346 (N.D.1985).

In his second argument, Donald notes that we do not look with favor on separating siblings in custody cases, and that separating Scott and Ericka was not in their best interests nor justified by the facts of this case. Initially, we note that this Court has not prohibited the separation of children in all custody disputes, and has in fact approved it where the trial court has found split custody desirable. See Gravning v. Gravning, 389 N.W.2d 621 (N.D.1986); Willi v. Willi, 335 N.W.2d 790 (N.D.1983); Henry v. Henry, 77 N.D. 845, 46 N.W.2d 701 (N.D.1950). In the instant case, the trial court indicated strong doubts about Donald's past alcohol problems and lack of continuing treatment, but recognized that placing custody of Scott with Mary Anna would be unproductive due to their strained relationship and Scott's strong preference for remaining with his father. Additionally, this case contains several circumstances lessening any negative effect of a split-custody determination including a fairly large age difference between the children, the fact that Scott is relatively close to the age of emancipation, the fact that Donald's residence in Horace and Mary Anna's residence in West Fargo are only a few miles apart, and the rather Donald's final argument is that the trial court's written custody findings only referred to the "interests" of children, rather than the exact words "best interests" of the children. However, in Deforest v. Deforest, 228 N.W.2d 919, 923 n. 1 (N.D.1975), we noted that the exact words "best interests" of the child need not be slavishly adhered to by a trial court in its findings. Moreover, the...